Tuthill v. Scott

[527] The opinion of the court was delivered by Wheeler, J. This stream appears to have had a well-defined channel throughout that part of its course that is material to this case, in the land of the defend.'nt, until the time of the great freshet in 1869. At that time the water appears to have left the old channel and to have flowed over upon the land of the plaintiff in various directions, but does not appear to have made any definite channel there. The freshet caused an inundation and not a reliction, so far as his land was concerned. For this inundation the plaintiff, so far as is now shown, had no right of action against any one, because it was done by the natural action of the water. Angell on Watercourses, § 335. But he had a right to protect his land against the inundation and to prevent its continuance, if he could do so without doing any unlawful injury to any one else. As the stream had made no new channel for itself in which it could run throughout that part of its course, it was not wont to run, in that part of its course, anywhere but in the old channel. Aqua ourrit et débet ciorrere, ut currere solebat. This was a rule of the civil law, and has become a maxim of the common law. Angell, § 93. According to this maxim, the water of this stream ought to have run in the old channel, and no one could justly complain that any one who had a right to have it run there made it run there. The plaintiff appears to have made the water of the stream to run in the old channel to relieve his land of the inundation. This, it seems, he had a right to do, and when done, the stream was as rightfully in the old channel as if it had never left it. Angell, § 332. Redfield, J., 26 Vt., 72. After the plaintiff had restored the stream to the old channel, it does not appear to have in any way run upon or into his land until the defendant filled up the channel made for it by the highway surveyor. Neither party does, or successfully could, insist that what the surveyor did to the stream, without proceedings to authorize it, in any way affected the rights of either party in respect to the other, any more than as if any stranger had done the same thing. The surveyor left the stream so that it would run on to the land of the defendant at a place where it had never run before, and where no one had any right to have it run against the will of the defendant. [528] The defendant had the right to relieve his land, at that jfiaco, of the stream, and to use any means for that purpose that would not injure the rights of others. But he had no right to stop up the channel which led the stream to his land, to relieve that of the water of the stream, without taking such measures as would be necessary to keep it away from the plaintiff’s land in that part of the course of the stream. Angell, § 335. When the defendant filled up the channel that led the stream to his land, he appears to have taken no measures to keep the water away from the plaintiff’s land, but to have left it to séek its way on to the plaintiff’s land as it would. What he did and omitted to do in these respects diverted the water of the stream from his own land on to the plaintiff’s land, against the plaintiff’s right. The plaintiff was not bound to wait, in submission to this invasion, until he had sustained some actual damage by it, before he could bring an action to vindicate the right. Should the right be made out, the invasion of it alone would be an injury from which some damage would be presumed to have accrued to the plaintiff. Sedgwick, Dam., 49 ; Angell, § 428 ; Dickinson v. Gr. June. Canal Co., 9 E. L. & E., 513. For these reasons the decision of the county court, by which a verdict was directed for the defendant, is considered to have been erroneous. Judgment reversed, and cause remanded.